The writer is associate professor in law at the University of Hull, UK and barrister, Lincoln’s Inn, London
First, it shall determine the existence of threat to the peace, breach of the peace or an act of aggression. Second, it may decide to take measures not involving the use of force to give effect to its decision for restoring international peace and security. Third, if the Security Council considers that the non-forcible measures are inadequate or have proved to be inadequate, it ‘may’ under Article 42 of the Charter ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’. The Charter also takes into account situations where a state is under attack or an armed attack is imminent. Article 51 allows states to act in self-defence in such situations using proportionate force but states have this right ‘until’ the Security Council has taken measures necessary to maintain international peace and security and the victim state is required to ‘immediately’ report measures taken in self-defence to the Security Council.
The use of force against another state, on humanitarian grounds, is not an established principle of international law yet. There is much academic discussion on the notion of responsibility to protect but minimal state practice. On 17 March 2011, the Security Council authorised the use of force against the government of Colonel Muammar Qadhafi in Libya to protect civilians in Benghazi. Five members of the Security Council abstained (Brazil, China, Germany, Indian and Russia) from Resolution 1973.
This resolution was used as a pretext for regime change when Qadhafi was overthrown in August 2011 and killed in October 2011. Mindful of the misuse of Resolution 1973, China and Russia double vetoed a resolution calling for sanctions against Syria in October 2011 followed by another use of double veto against a resolution referring war crimes and crimes against humanity committed in Syria to the International Criminal Court in May 2014.
In August 2013, the British attorney general advised the government that military action can be taken against Syria, on humanitarian grounds, but the UK Parliament voted against it.
The United States launched unilateral air strikes against Syria. The US President, Donald Trump, gave two reasons for the attack: chemical weapons attack on innocent civilians and that it is in the ‘vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons’. The UN did not authorise the use of force. Syria has not attacked the US either. ‘Vital national security interest’ has never been a ground for the use of force in self-defence. The US did not succeed with this argument at the International Court of Justice in 2003 in a case related to its attacks on Iranian Oil Platforms in 1987 and 1988. It seems that the US is implicitly relying on humanitarian grounds but this has never been a generally accepted ground for the use of force, especially unilaterally.
A separate but related point to bear in mind is that there is no independent investigation to determine who used chemical weapons. Syria denies it. Russia blames the rebels. The US Department of Defence claimed that ‘the US intelligence community assesses that aircraft from Shayrat conducted the April 4 chemical weapons attack’. False claims of possessing chemical weapons were made against Iraq in 2003. Given that there is no independent evidence as to who is responsible for the attack and that the attack has neither been authorised by the UN nor can it be viewed as acting in self-defence as Syria did not attack the US, the military strike against Syria is unlawful. The US has committed the crime of aggression under customary law and the Rome Statute of the International Criminal Court 1998.
A persuasive argument for intervention on humanitarian grounds may become possible if the US and Russia can resolve their differences and use the platform of the UN Security Council. Depending on the outcome of an independent investigation, a case for intervention may be made against the Syrian government or the rebels or both as the crimes committed in Syria are an affront to humanity. But any intervention must be authorised by the UN Security Council.
Published in The Express Tribune, April 21st, 2017.
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